Newark Trust Co. v. Bruwer

• Decision Date: 23 May 1958
• Citation: 51 Del. 188,1 Storey 188,141 A.2d 615
• Parties: , 51 Del. 188 NEWARK TRUST COMPANY, a corporation of the State of Delaware, Defendant Below, Appellant, v. Georgia BRUWER, Plaintiff Below, Appellee.
• Court: Supreme Court of Delaware

Page 615

141 A.2d 615

1 Storey 188, 51 Del. 188

NEWARK TRUST COMPANY, a corporation of the State of

Delaware, Defendant Below, Appellant, v. Georgia BRUWER, Plaintiff Below, Appellee.

Supreme Court of Delaware.

May 23, 1958.

William Prickett and William Prickett, Jr., Wilmington, for appellant.

Harold Leshem, Wilmington, for appellee.

SOUTHERLAND, C. J., and WOLCOTT and BRAMHALL, JJ., sitting.

SOUTHERLAND, Chief Justice.

This is an action of slander brought by Mrs. Georgia Bruwer, plaintiff below, against Newark Trust Company, defendant below. The sole question before us is whether there was sufficient evidence of malice to warrant the trial judge in submitting the case to the jury.

We must, of course, view the evidence in the light most favorable to plaintiff. If it is so viewed, plaintiff made the following case.

Toward the end of the year 1955 there was presented to Newark Trust Company several checks on depositors' accounts the signatures of which were forged. One of these checks had been cashed at the bank's drive-in station. On that check the teller had noted the license number of the car. Other checks had been cashed at various stores in Newark.

Mr. E. F. Matthews was the chief executive officer of the bank. He ascertained the name of the owner of the car referred to and went to see a Mr. Honis. Honis denied any knowledge of the matter.

On January 27, 1956 Mr. Matthews reported the forgeries to the Newark police. The matter was referred to the State Police and assigned to Detective Marinelli. The latter called to see Mr. Matthews at the bank on January 31 but Matthews was out.

On the morning of February 1 there occurred an incident that led up to the present suit.

Mrs. Georgia Bruwer and her husband had a joint account at the bank. Her husband was in the army overseas, and she was receiving a monthly allotment of $400. The checks were sent to the bank for deposit to the Bruwers' account.

About ten o'clock in the morning of February 1 Mrs. Bruwer called a teller at the bank, Mrs. Jackson, and inquired whether the allotment check had arrived. She understood Mrs. Jackson to say that it had arrived. Mrs. Bruwer went to the bank about eleven o'clock, drew a counter check for $150, and presented it for payment to another teller, Mrs. Matthews. Mrs. Matthews ascertained that Mrs. Bruwer's balance was forty-seven cents, and declined to pay the check. Mrs. Bruwer then told Mrs. Matthews of her conversation with Mrs. Jackson, who was then out to lunch. Mrs. Matthews ascertained that the allotment check had not been received. Mrs. Bruwer testified that she was annoyed, but said she would be back in a few days. Mrs. Matthews asked her to speak to Mr. Matthews, and took her and the check to Mr. Matthews' desk at the rear of the bank. After explaining the situation and giving the check to Mr. Matthews, Mrs. Matthews left them.

The details of their conversation are in dispute. It appears that Mr. Matthews explained to Mrs. Bruwer that the bank could not pay on uncollected funds, and that Mrs. Bruwer told him that since a government check was involved the bank would be sure to get its money. According to Mrs. Bruwer, Mr. Matthews was 'rough' or impolite, and 'treated [her] mean'. Mrs. Bruwer left without taking her counter check. According to her, 'he [Matthews] kept that' check.

Sometime later, but before two o'clock, Mr. Matthews noticed a similarity between the signature on the Bruwer check and the signature on the forged checks. The particular similarity was apparently the formation of a capital 'G'. He showed to his associate, Mr. Pettit, vice president, Mrs. Bruwer's check and one of the forged checks. Mr. Pettit said that there was a possibility they were written by the same person, but an expert would be needed.

About two o'clock of the same day, Detective Marinelli came to the bank and asked to see Mr. Matthews. An employee took him to Mr. Matthews' desk. What occurred at the interview is in dispute. Marinelli first testified that at the outset of the interview Mr. Matthews greeted him with the statement: 'that dirty bitch', or 'that dirty rotten bitch'. Since the men were unacquainted, and since Marinelli was in plain clothes and had not come by appointment, the statement seems incredible. But Marinelli also testified on further examination that the statement might have been made later in the course of the interview. His recollection of the details of the conversation was evidently hazy, and the sequence of the conversation was left in some confusion. But it is clear that Matthews showed Marinelli the forged checks, and also the Bruwer check, and that he called Marinelli's attention to the similarity of handwriting above referred to. Marinelli agreed that there was such a similarity. Mr. Matthews also told Marinelli of the earlier attempt by Mrs. Bruwer to cash the $150 check.

The weight and credibility of Marinelli's testimony taken as a whole was for the jury. Viewing it in the light most favorable to plaintiff, we think that the jury could have found (1) that Mr. Matthews communicated to Marinelli a suspicion that Mrs. Bruwer was the forger, and (2) that at some time during the conversation he spoke the offensive phrase above quoted, and (3) that the phrase referred to Mrs. Bruwer.

Whether at that interview Mr. Matthews called Marinelli's attention to the license number on the back of one of the forged checks is in doubt. Mr. Matthews said that he did so; Marinelli first corroborated this, but later said that he thought it was at a second interview that he was told of the license number.

On February 22 Marinelli called upon Mrs. Bruwer. He told her that he was investigating the matter of the forged checks, and that he had several checks and one of them was a counter check for $150 which he presumed was hers. Mrs. Bruwer said that it probably was hers. Marinelli then pointed out the similarity of the handwriting on her check and the writing on one of the other checks. He informed her that she was a suspect. According to Mrs. Bruwer he told her that the Newark Trust Company suspected her. After some further investigation Mrs. Bruwer was arrested and charged with forgery.

Some time later Detective Marinelli obtained from Mrs. Honis, the wife of the man whom Mr. Matthews had interviewed, a full confession that she was guilty of the forgeries. This action was thereafter brought.

Since the imputation of the crime of forgery was made by Mr. Matthews to a police officer in connection with the latter's official duty to investigate the forgeries, it was clearly a privileged utterance, if made without malice. Cameron v. Cockran, 2 Marv. 166, 42 A. 454. Counsel were and are agreed upon the applicability of this principle of law. The question therefore is: Is there any evidence that the imputation of forgery to Mrs. Bruwer was maliciously made?

The crucial bit of evidence relied on by plaintiff is, of course, the application to Mrs. Bruwer of the phrase above quoted. We inquire: Might the jury infer malice from the use of this epithet and from the circumstances under which it was made?

We think that the following view of the matter is within the permissible bounds of reasonable inference:

The extreme coarseness and offensive nature of the epithet--'dirty rotten bitch'--was not justified by a mere suspicion of forgery, based on nothing more than a surface similarity in handwriting. It might be attributed to a strong feeling of resentment and anger, generated originally by the episode of the morning, and designed to prejudice the investigating officer against Mrs. Bruwer. It is certain that Marinelli's first investigation was directed to Mrs. Bruwer. He testified that the circumstances were such that if he did not receive the cooperation of Mrs. Bruwer he would sign a warrant...